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Penal Law § 110.00

In this criminal case, defendant was arraigned on a felony complaint and charged with assault in the second degree, assault in the third degree, criminal possession of a weapon in the fourth degree, menacing in the third degree, and harassment in the second degree. The case was later adjourned for Grand Jury action.

A Kings County Criminal attorney said that the felony charge of assault in the second degree was dismissed leaving the misdemeanor charges pending. The People served and filed the supporting deposition converting the complaint into an information and declared their readiness for trial. The court adjourned the case.

Thereafter, the case was adjourned for discovery by stipulation (DBS) to April 2000, when DBS was served and filed and the matter was adjourned for hearings and trial.

In May 2000, the People announced they were not ready for trial and further reduced the “A” misdemeanors of assault in the third degree and criminal possession of a weapon in the fourth degree to attempted assault in the third degree, and attempted criminal possession of a weapon in the fourth degree, class “B” misdemeanors. The case was then adjourned for trial.
During the continuance, defendant served and filed a motion to preclude the People from reducing the charges of assault in the third degree and criminal possession of a weapon in the fourth degree, or in the alternative, granting the defendant a jury trial on the reduced charges. Defendant maintains that allowing the People to reduce the charges on the eve of trial denies defendant the Sixth Amendment right to a trial by jury. Defendant further maintains that CPL 340.40 (2) is unconstitutional on its face, as it violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

The People have the discretion to determine how and when to prosecute, including the right to reduce, add or amend charges. The People may reduce an A misdemeanor to a B and decide, in the first instance, what charges to bring against a defendant. However, the People cannot withhold the actual charge in order to prevent the defense from building a strategy and amend the charge on the eve of trial, prejudicing the defendant. The People must act in good faith when adding or amending the charges.

The proposition that the prosecutor has the right to take into account staffing and budgetary considerations in deciding which cases to subject to lengthy jury trials and which to reduce and dispose of as expeditiously as possible is not an absolute right. One such limitation on the prosecutor’s power to reduce arises when the prosecutor moves to reduce a felony to a misdemeanor. CPL 180.50 empowers the court to determine whether there is reasonable cause to believe the defendant committed an offense other than a felony. Another such limitation on the prosecutor’s power to reduce is the “doctrine of hypothetical crimes.” The hypothetical crime arises when the People reduce a charge from a completed crime to an attempted crime which is impossible to commit.

A plea to a hypothetical crime will be accepted by the court only for the purpose of a plea agreement, but not for the prosecution of the case itself. There cannot be an “attempt” to commit a crime which is inherently illogical and impossible to commit.

To Be cont….

Penal Law of 1909 § 2 defined an attempt to commit a crime as “[a]n act, done with intent to commit a crime, and tending but failing to effect its commission.” The drafters of the current Penal Law § 110.00 intentionally omitted the reference to lack of consummation because an attempt is no longer precluded by the fact that the crime was completed. Penal Law § 110.00 states in pertinent part: “A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” When the Legislature enacted section 110.00 of the Penal Law it omitted the requirement that in order for someone to be guilty of an attempt, the underlying crime must not have been consummated. The omission of this requirement permits the People to overprove their case, e.g., to prove the actual assault where a charge of attempted assault is brought. Thus, in the case at bar, the People may properly reduce the charge from assault in the third degree to attempted assault in the third degree and criminal possession of a weapon to attempted criminal possession of a weapon.

The defendant maintains, however, that the People cannot reduce the charges on the eve of trial so as to deprive defendant of a jury trial. The defendant argues that the reduction of the charges on the eve of trial constitutes prosecutorial vindictiveness, prejudices the defendant and is an abuse of discretion.

The case at bar is distinguishable from a former case. In that case, the court has held that a reduction on the eve of trial, depriving the defendant of a jury trial, constituted abuse of prosecutorial privilege in the absence of good cause for such a belated reduction. Further, the charges were reduced from criminal possession of a controlled substance in the fifth degree to attempted possession, which would have arguably altered the defense strategy.

In the case at bar, the court holds that there was no abuse of prosecutorial privilege as the reduction of the charges was raised after the case had been adjourned for trial for a period of three weeks. Furthermore, the case was reduced from a charge of assault in the third degree to attempted assault in the third degree, which is not inherently so different so as to alter the defense strategy. The People exhibited no vindictiveness in reducing the charge as they left ample time before trial for the defense to prepare a proper defense strategy, and they did not attempt to hide the true nature of the charge from the defense.

The United States Supreme Court has held that the 14th Amendment guarantees defendants in State criminal trials the right to a jury trial provided for in the 6th Amendment.

In the case at bar, the defendant has moved the court for an order granting a jury trial if the People are permitted to reduce to a B misdemeanor, on the grounds that CPL 340.40 (2) is unconstitutional on its face in that it is in violation of the Equal Protection Clause of the 14th Amendment and the 6th Amendment right to trial by jury by excluding defendants in New York City Criminal Courts from the same right to a jury trial afforded to defendants in criminal courts outside of New York City.

This issue has been decided by the Court of Appeals in a case, where the Court held that CPL 340.40 (2) does not violate the 6th Amendment as applied to a defendant charged with prostitution, inasmuch as prostitution in not a “serious” offense within the meaning of the 6th Amendment guarantee of trial by jury, as it is only punishable by a maximum of three months’ imprisonment. In Morgenthau, two women accused of prostitution moved for a trial by jury. The defendants argued that CPL 340.40 (2) was unconstitutional since it deprived them of their 6th Amendment right to a jury trial and denied them the equal protection of the law. The Criminal Court granted their motion although the sentence was not “serious” and therefore not protected under the 6th Amendment. The Court of Appeals rejected this argument and held that defendants were not entitled to a jury trial.

In the instant case, defendant maintains that the State of New York has failed to demonstrate a compelling State interest that would necessitate a disparity in the right to a jury trial for the people in New York City. Defendant’s undocumented and unsubstantiated claim is without merit. The use of single Judge trial in the City of New York is aimed at increasing the number of cases tried in Criminal Court. In selected cases, the prosecutor will move to reduce class A misdemeanors to class B misdemeanors in order to avoid time-consuming jury trials. Reduction of charges carries with it the additional benefit to the defendant by reducing exposure to punishment upon conviction.

Accordingly, defendant’s motion for an order precluding the People from reducing the charges or in the alternative granting the defendant a jury trial on the reduced charges is denied without a hearing.

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